A Restrictions on women's right to act legally

1    Prohibition on bringing a request on others’ behalf

Under the Praetor's Edict, a woman could bring a request (postulare) for a judicial hearing in a civil case only on her own behalf, not on behalf of others.¹¹⁴ The Digest passages in this section were all taken from commentaries by classical jurists discussing the restrictions set forth in the Praetor's Edict.

In his sixth book on the Praetor's Edict, Ulpian began by noting [D.3.1.1.3^] that deaf persons and youths below the age of seventeen could not even represent themselves in court, though they could have an advocate appointed for them.

D.3.1.1.5 (Ulpian): In the second section, an edict is published in regard to those who are not to bring a request on behalf of others. In this edict the praetor made particular mention of sex and misfortune, and likewise he marked with disgrace persons conspicuous due to shameful behavior. In regard to sex: he prohibits women from bringing a request on behalf of others.

We hear about the notorious “Carfania” (elsewhere called “Afrania” or “Carfinia”) in literary sources also, where she is the quintessential example of the litigious female. The Roman moralist Valerius Maximus, writing under the emperor Tiberius, also mentions Carfania, along with Maesia of Sentinum (on whom see below) and Hortensia, daughter of the orator Hortensius. This passage is from his Memorable Deeds and Sayings (Facta et Dicta Memorabilia), in a chapter entitled: “Those women who pled causes before magistrates on their own or others’ behalf” [see Shackleton Bailey 2000 for the Latin text]:

Valerius Maximus VIII.3.2 (written c.30 C.E.)

Nor should I be silent even about those women whose nature and matron's sense of shame¹¹⁶ did not avail to restrain (them) so that they would be silent in the forum and in legal cases. [The case of Maesia of Sentinum follows, for which see Part V.D below.]

(2) But Carfania, the wife of the senator Licinius Buccio, quick to engage in lawsuits, always made speeches on her own behalf before the Praetor, not because she lacked advocates, but because she abounded in impudence. And so by her unusual barking in the forum in continually harassing the tribunals, she ended up being the most notorious example of female calumnia¹¹ to the point where the name of Carfania is thrown at women of shameless habits as a reproach.

Neither Ulpian nor Valerius Maximus says that Carfania was acting legally on behalf of someone else, but only that she was behaving in an improper and unfeminine fashion by continually undertaking legal action on her own behalf [Gardner 1993, 101—5; Marshall 1989, 43—7]. It is unlikely that she was the real reason for the ban on women acting on behalf of others [Gardner 1986a, 263].

D.3.3.54 pr. (Paulus): Neither a woman nor a soldier nor a man who is going to be absent on government business or who is held back by perma­nent illness or is about to undertake a magistracy or, against his will, is unable to undergo a trial, is understood to be a suitable (legal) defender.

D.47.23.6 (Ulpian): The right to bring “popular actions”¹¹⁸ is not given to a woman or a fatherless minor (pupillus), except when the matter pertains to them.

Women were also prohibited from defending others in court. This was associated by the jurists with the general ban on women's interceding for another, as set forth in the first- century s.c. Velleianum [see Part IV.D]:

D.16.1.2.5 (Ulpian): But also if a woman should be someone's defender, she is doubtless interceding. For she undertakes someone else's obligation onto herself, since indeed she undergoes condemnation in consequence of this act (that is, if she loses). Therefore it is not permitted to a woman to defend her husband or her son or her father.

If his wife suffered insult or outrage,¹¹⁹ a man could bring an action for iniuria to himself, since, according to ancient ideas of honor and reputation, an insult to a married woman was an insult to her husband.

D.47.10.2 (Paulus): But if outrage (iniuria) has been done to her husband, a wife does not act, since it is right for wives to be defended by their husbands, but not for husbands to be defended by their wives.

If a woman did act legally for her husband, and he lost the case, he had grounds for appeal, as we see from this imperial reply:

Cod. Just. 2.12.4, 4 January, 207

Emperors Septimius Severus and Caracalla Augusti to Saturninus:

Since you say that judgment was made against you in your absence, it is fair that the defense of your case be restored to you. Nor will you be hindered by the fact that your wife was present at the trial or even acqui­esced in the judgment, since someone else's affairs are not otherwise able to be transacted through women, except when legal actions have been mandated to them in regard to their own property or their own profit. Posted on the day before the Nones of January in the consulship of Aper and Maximus.

Widowed mothers who wanted to represent their fatherless children were told in imperial rescripts that this was beyond their responsibilities [Cod. Just. 2.12.18 and 9.1.5, in Chapter 5, Part II.A.3]. However, exception might be made when a mother acted out of the Roman sense of duty (pietas) to appeal a judgment already made against her child [D.49.5.1, in Chapter 5, Part II.A.2]. And sometimes defending someone else could be construed as self­defense:

D.16.1.3 (Paulus): But if she is defending a man who, if condemned, would have redress against her, such as when she defends the seller of an inheritance that was sold to her or the person who gives security for her, she does not appear to be interceding.

2    Prohibition on bringing criminal charges

size=1 color=black face="Times New Roman">Women were also among those restricted from bringing accusations on criminal charges such as murder, adultery, or forgery.

D.48.2.8 (Macer): We will understand who is able to bring a criminal accu­sation, if we know who is not able. And so some are prohibited from bringing an accusation on account of sex or age, like the woman or the pupillus; others on account of their oath of allegiance, like those who perform military service; others on account of their magistracy or power, in which capacity they are not able to be called to court without damage (to their authority); others on account of their own wrong-doing, like infamous persons;¹²² and others on account of their shameful way of earning money, like those who have their names subscribed to two judgments against two defendants or have received money for the purpose of bringing an accusation or not bringing one; others because of their own legal position, like freedmen (who cannot bring a accusation) against their patrons.

D.48.2.11 pr. (Macer): However, all these, if they are pursuing their own injury or avenging the death of their relatives, are not excluded from bringing an accusation. [See further below on this exception.]

Though under Augustus' adultery law, husbands were positively required to bring adul­tery charges against a wife they knew was unfaithful or risk prosecution for pimping [see Chapter 2, Part I.B], wives did not have the right to charge their husbands with adultery.

Iegally, adultery was an offense committed against a married woman's husband, and a woman who brought charges against her adulterous husband would ipso facto be acting on behalf of someone else (her husband's lover's husband) [Beaucamp 1990, 43].

Cod. Just. 9.9.1, 20 July, 197

Emperors Severus and Antoninus Augusti to Cassia:

The Julian law (on adultery) declares that women do not have the right of accusation in a criminal court (publicum iudicium), though they wish to complain about the violation of their own marriage. Though (the law) had offered the ability to accuse (a wife) to men by the right of the husband, it did not offer the same privilege to women. Posted on the thirteenth day before the Kalends of August in the consulship of Lateranus and Rufinus.

Sometimes the emperor's replies take on an admonishing tone, as in this rescript to a woman who wanted to bring a criminal charge of forgery tfalsum) [see also Cod. Just. 9-1-5 in Chapter 5, Part II.A.2]:

Cod. Just. 9.22.19, 8 March, 294

Emperors Diocletian and Maximian Augusti and the Caesars to Cosmia:

Even if the business pertained to you, you should have deliberated with yourself again and again, so that you would not bring a disgraceful accusa­tion, by striving to charge that the deed which you had signed was forged.

(1)   But since it has not been allowed to women to bring an accusation in someone else’s forgery case, (and) you, moreover, claim that you had previ­ously given these same estates to someone else, you are asking for the ability to bring an accusation against the form of the law. Subscribed¹²³ on the eighth day before the Ides of March in the consulship of the Caesars.

In the following rescript to a certain Agricolanus (whose official position, if any, is unknown), the fourth-century emperor Constantine restates in strong terms the classical prohibition on women bringing criminal prosecutions except in matters involving injury to themselves or their family. As Constantine admits, sometimes women were allowed to bring charges despite the general prohibition. In another law, Constantine explicitly granted husbands the right to act in court on their wife’s behalf without a mandate [Cod. Just. 2.12.21, in Part IV.B]. His law of 326 on abduction marriage, however, exaggerated and distorted earlier law when it claimed that women had been completely excluded "from making legal complaints and from giving testimony and from all judicial matters" [Cod. Theod. 9.24.1; in Chapter 3, Part II.C].

Cod. Theod. 9.1.3, 9 February, 322

Emperor Constantine Augustus to Agricolanus:

Since it is clear and manifest law that women do not have the capacity to bring a criminal charge except for certain reasons, that is, if they are prose­cuting outrage (iniuria) to themselves or their family, it is necessary that the statutes of ancient times be observed. For it is not right that the capacity to bring an accusation be permitted to women indiscriminately. Yet sometimes in public trials in the past either a trial or the authority of an accuser was granted (to women). Defenders of cases must also be warned not to take up rashly, because of regard for personal gain, (the cases of) women who perhaps rush into illegal action, heedless of their sex.

Posted on the fifth day before the Ides of February in the consulship of Probianus and Julianus.

3    Prohibition on being an informer to the fiscus

Women were also not allowed to be informers [delatores} to the imperial treasury (fiscus'). This would entail bringing an accusation that another person had defrauded the fiscus by not reporting that he (or she) had received something under a will (legacies were taxable, unless the legatee was a close relative of the deceased).¹²⁴ Informers received a share of the legacy that they had reported, and many people informed on their fellow-citizens for personal gain or revenge. The official position on informers was ambivalent; the state welcomed the revenues from confiscated legacies, but emperors deplored the motives that led people to be informers, and informing was considered underhanded and not honorable. This passage is from Marcian's commentary “on informers” (de delatoribus'):

D.49.14.18 (Marcian): Women are not able to be informers on account of the weakness of their sex, and thus imperial constitutions have ordered. 1: Likewise men of senatorial status are not able to be informers. 2: Likewise condemned men are not able to be informers, as the deified brothers (Marcus Aurelius and Lucius Verus) ruled in a rescript, and he who, after being beaten with rods, had been sentenced to hard labor. 3: Likewise by the constitutions of the emperors those who have been sent to the mines are forbidden to be informers. [4 is omitted.] 5: Veterans also, by imperial constitutions, are forbidden to be informers, particularly on account of the honor and importance of having been in the military. 6: Likewise soldiers on account of the military service they perform are forbidden to be informers. [the rest of D.49.14.18 is here omitted]

The list of those who may not be informers to the fiscus includes both those whose honor is so high (senators, soldiers, veterans) that their reputation will be damaged if they receive money for the sordid activity of informing on others, and those whose honor is extremely low because they have been condemned to degrading penalties. Where do women fit in? The reason Marcian gives, “because of the weakness of their sex,” simply repeats the old cliché of “womanly weakness” found elsewhere in Roman law, which even some jurists like Gaius thought made little sense [Part IV.C]. The ban on women informers is really due to tradi­tional Roman ideas about honor and female behavior: it was considered improper and immodest for a woman to be so bold and interested in material gain that she would inform on another for a financial reward.